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SPEECH 



IVES, OF VIRGINIA^ 



IN 3UPP0RT OF MR. BENTON'S 



£'K]PUJ%'^IJVG .RBSOIjWTI&A''^, 



IN SENATE, MARCH 23, 183o. 



WASHINGTON : 

3"'- AIR i. RIVES, PRINTERS 

183(i. 



SPEECH. 



On Mr. Benton^s Expunglnsc licsolulions . 
Ih Sesatc, March 28, 1836. 

Mr. CLAYTON moved that the resolutions of 
the Senator from Miasouri should be taken up, 
in oi\ler that the discussion tipon them might pro- 
ceed. The motion being adopted, 

Mr. RIVES then rose, and addressed the Sen- 
ate, in substance, as follows: 

If no other gentleman, Mr. President, be dis- 
posed to do so, I will avail myself of the oppor- 
tunity KflTorded by the motion o tiie Senator 
from Delaware, to trouble the Senate with some 
remarks on the subject now under consideration. 
In doin.^ so, I do not propose, at this time, to po 
into the wide field of diversified and interesting' 
matter opened for discussion by the resolutions of 
the Senator from Missmiri. My purpose will be 
to confine myself, at present, strictly to the con- 
stitutional question which has been raised hs to 
the power of this body to expunge from its jour- 
nal an entry heretofore made upan it, trusting to 
the indulgence of the Senate, in a future stage of 
the discussion, to he permitted to present my 
views of the other highly important questions in- 
volved in the general subject. I propose thus to 
limit my remniks for the present, bec.iuse the 
constitutional que.stion is naturally and properly 
preliminary to all the rest, standing first in the order 
of discussion, as well as first in importance; for 
however justly obnoxious I deem the resolution 
of March, 1834, to the various exceptions which 
have been taken to it, it certainly ought not to be 
expunged, unless under the constitution we have 
the rightful .Tuthoriiy to do so It seems proper 
to confine my remarks, for the present, to this 
single view ot the subject, for the further re ivon 
that, as yet, this able and lucid arguments of the 
Senator from Missouri on the other branches of 
the discussion, have remained without any an- 
swer, or even an attempt to answer them. 

A free people, Mr. President, and especially 
the enlightened people of tliis country, are na- 
turally and wisely jealous of the observance of 
their fundamental law, and acutely sensible to 
any violation, actual or msditated, of its pro- 
visions. Hence it is that, in the warfare »f 
parties, appeals are so frequently made to this pa- 
triotic instinct in the public mind, and alarms, of- 
ten groundless and artificial, attempted to be raised 
in regard to the security of the constitution. 



Hence it was, 1 presume, that in the memorable 
contest of which this chamber was the theatre two 
years ago, the Presidei.t was denounced as an 
usurper of un.:,''rantcd power, as a violator of the 
Gonstit'ition and the laws of his country; when if 
all that wjs alleged by his adversaries could be 
su>*tained, it woidd have niide but a case of the 
misapplication or abuse of power granted both ^-^y 
the constitution and the hws. Hence it is, too,f 
suppose, tiuit on the piesent occasion a ii'iu pania 
is attempted to he raised by huldmg up tiie imae:e 
of mniilated records and a violated coiistiiuUon, 
and that the exercise of a lawful discretionary 
power over their own iournah und isroceedings, 
which has been known and admitted since the 
origin of legislative bodies, and is familiar in par- 
liamentary practice, wherever such bodies exist, is 
repi-esented as something monstrous, miquitous, 
antl even feloni'ius. If gentlenien expect, thus, 
by the use of strong languaire, bold assertion, and 
vehement denunciation, to ctirry the public judg- 
ment by storm, V.'.ey will, in ray humble opinion, 
find tliemselves wofully deceived. 'Die public 
mind ;s, at this moment, calm, self-b\lavicr'd, scri*- 
tiniz'mg, inquisitive, and mstead of mere asser- 
tion ami VHijue denunciation, it will require reason, 
argument, proof. 

It is In this fspirit, Mr. President, that I shaH 
proceed to the examinut on of the objection which 
has been made to the proposition under conside- 
ration, on the gronnd that it demands an .ict to be 
done which is for!.idden by the constitution. 
What, sir, is the argument of g "ntlemen on this 
subject, so far as argument has been attempted ? 
It is, that as the constitution requires that "each 
House shall keep a journal wf its proceedings," 
<n entry once made upon llmt journal cnn never 
thereafter be, in any manner, tmiched, altered, or 
removed — tiiat if we do so, we fail, from that mo- 
m'='nt, in the language of the constitution, to "keep 
ajnirnal of our proceedings." The connexion 
between the premises and the conclu'^ion in this 
reasoning, is, I must confess, Mr. President, to my 
mind incomp ehensible. If this body shall, by a for- 
mal resolution entered on its journal, direct a pre- 
vious entry ,improvidcntly,wrongfully,or erroneousf- 
ly made, to be corrected or removed, does it follow 
from thence that we do not still keep a journ'tl? On 
the contrary, this very proceeding, in be4ng enter- 
ed on the journal, and embodying the w lole liis 
tory of the transaction, is itecif a fulfilment of tbe 



4 



constitutional irj unction in its trne and well un- 
derstood sense — that of writing down, from day to 
day, our duily transactions ;is they transpire. 

But It is f.ot ray intention, Mr. President, to dis- 
ctit'S this question on the niceties of verbal criti- 
cism. 1 ciionse rather to take it up on broad 
viev.tj of the common sei-.se, and practical mean- 
inp- and op<" ration of the constitution. Whilethe 
cons'.itution requires that each Ht-use shall keep a 
jonnial of its prooeeciirigs it doe? not direct how 
that journal is to be kept. The oiauner of keep- 
ing it, whm is to be put upon i1, what not, the na- 
ture, the form, the fuliiiess of the entries, are all 
matters left for the regulation and control of the 
body whose dulv it is to keep the journal. In 
tbei^e re; pec's, there is great diversity of usae;-e 
among' Itgi-lative bodies. By some the entire bill 
presented for its action, is spi'ead on the journal, 
Bs was done during' the two Hrst Congresses under 
the present constitution by this hodv . l?y others, 
the title of tlie bill only is entered on the jour- 
nal, t^ is now the practice both of this House 
and the other branch of Cong:ress. By 



doubtless may be committed. But the possibU/'tt/ 
of abuse is no argument ag.dnst the existence of a 
powar. Congress has, by express and unequivo- ' 
cal grant in tht^ constituijon, power " to lay and 
collect taxes," he. and *'to raise and support nr- 
mies." [n the exercise of these powers. Congress 
mififht raise, even in time of profound peace, an 
army of half a m Ihon of men, and levy upon the 
people anntially two or three hundred millions of 
dollars for their support, converting one iialf of 
liie nation into soldiers, and the other half into 
paupers. There could be no grosser abuse; and 
yet the constitutional y>owcr would still be indispu- 
table. AVhere it has been deemed necessary and 
proper, for the public good, to vest any particu- 
lar power in the Governrnent, or a department of 
it, the constitution grants the power, and provides 
securities against its abuse in the structure and or- 
ganization of tlie Govei'nment itself. |'l he periodi- 
cal election of the public functionaries by the peo- 
ple, and for the most part for short terns, their re- 
sponsibility to their constituents, and the constant 
nfiuence and control of public opinion, are relied 



some, the reports of committees are entere<l upon in our system as conferring every reasonable 
in lull on the journal, as was done by the j security against the gross abuse of necessary pow- 
oUl Congress undrrthe articles of confederation, | ers. 

and Vs still practised, I believe, by tlie Legislature i The large dissretionary po'wer which the con- 
of Virt^inia. By others, the resolutions only, re- [ stitution has left to either House of Congress over 
ported by committees, arc admitted to a place on I its journals, is strikingly exemplified in the pro- 
the journal. According to the rules and practice i vision respecting their publication 



of some hgislalive bodies, as, for example, of this, 
«)roceedings in committee of the whole are entered 
on tlie journal; while in others, as in the House of 
RfcTjreseiita'ives, no notice whatever appears on 
the journal of what has been done in committee of 
flie whole. 1 might mention, also, as illustrating 
tie discretloniry powers which evety legislative 
bodv possesses ovrr its joti.rnal,tneapparentlyano- 
inalous practice, founded, however, on long usage, 
of both th s House and the other, to enter on their 
respective journals the messages of the President, 
tliougii not forminfT a part of their own "proceed- 
incs," of whicli only they are required to keep a 
journal. 

Itrosiiltsfrom thf se considerations that, although 
each House of Congress is bound to keep a jour- 
nal of its proceedings, yet that journal, as to the 
inannerof keeping it, tiie natvire and character of 
its contents, what is to be upon it, what not, is ne- 
cesi^arily sul-jcctcd to the control of the body whose 
dutv it is to keep it. This control is an inseparable 
i)ai't of that srlfiriiverninix power, in aU matters of 
interior economy and parliamontary regime, which 
the eHHi>titut(m expiessly delegates to either 
kr.inch of the legislative department. Each House, 
bv the constitution, is " t-o choo-^ft its own Speaker 
or Preside'- 1, and other officers." — •* Kmh Houae, 
tihf), shall be the judge of the elections, returns, 
»nd iju'alifications of its own mcn.bers " — '^ Each 
Uoust: mar <ktermine tlie rulr^ of its proceedings, 
punish its'members tor disordt rly behavior, .ind 
with the concurrence of two-thirds, expel a mem 



Each House 
is required by the constitution to publish its jour- 
nal i'vomtlmeto time, excepting such parts as may, 
in their juda^mcnt, lequire secresy. Now, under 
the terms of this provision, either House ot Con- 
gress, if disposed to abuse the trust reposed in 
them, might suppress and withhold from the 
knowledge of the people the m.-st important part, 
if not the whole of their proceediuiis, under the 
plea that they were such as, in their judgment, re- 
quired secresy. 

Tn the jealous apprehensions which were enter- 
tained at the time of the adoption of the consti- 
tution, of the encroachments and abuses of the 
new Government, ttiis objection was strongly 
urged ag»inst the cl.iuse in question; buit it was 
replied, and with success, that every legislative 
body must have thepower of concealing important 
transactions, the publication of which might com- 
promise the public interests; and as it was impos- 
sible to foresee and enumerate all the cases in 
which such concealment might be necessary, they 
should be left to the sound discretion of the body 
itself, subject to the constitutional responsibility 
of members and the otlicr securities provided by 
the constitution agiinst the abuse of power. 
These securities have hitherto been found suffi- 
cient, and, in point of fact, the journals of both 
Houses have been published from day to day, with 
such special and limited exceptio.is as have been 
universally approved by the public judgment. 

This publication, when made, is the practica 
fulfilment and consummation of the design of the 



|>er."—"Ha'di House snail keep a j nirnal of its pro-j constitution in requiring a journal to be kept, by 
cecdinf,s, and, from time to time, publish the same, either House, of its proceedings. It is agreed on 
exeep'iiig -iich parts as may, in their judgment, | all hands, that the great object for which a jour- 
rtqiiire secrecy." I n regard to al! these powers and I nal is required to be kept, is to give authentic in- 
huictioH'f, a very l^rge discretion is necessarily left| formation to our constituents of our proceedings 
(t) either House, in the exercise of which abuses i and that information is to be given, as the consti; 



tution providis, by means of a publication, from 
time to time, of the journal itself. Tlie requisition 
to Ae^j) a journal, on wliicli gentlemen have laid so 
niucli strt-s.-i, is therefore merely inlrodu:to)'y, or 
what the lawyers call matter ot inducement only, 
to that which forms the life and substance of the 
jjrovision, to wit: the pub/icalion, from time to 
time, of the journal. The whole structure and sc- 
{jiience of tlie sentcr;ce sustains tliis interpretation. 
" Each House shall keep a journal of its proceed- 
ings, and, from time to tinie, publish tlie same" 
It is evident thit the whole practical virtue and ef 
feet of the provision is in the latter member of 
the sentence, and that the former would have 
been implied and conip-ehendi-d in it, though iu)t 
e.^pressed- It will be seen, that the correspond- 
ing provisi(m in the articles of confederation was 
founded explicitly on this idea; for, presupposing 
the keeping of a joiu'ital as a matter of cour^^e, it 
proceeded at once to require tiiat "Congre.ss shall 
publish (he journal of their proceedings montli'y, 
excepting ^uch parts thereof re!ati;ig to treaties, 
alliances, or military operations, as, in their judg- 
ment, require secrecy." 

Nothing was said of /re^/jiVi^r a j'>urnal, that be- 
ing presupposed, atid necessarily implied; but can 
any one doubt, tliongh the articles of confed' ra- 
tion were silent as to keeping a journal, tiiat Con- 
gress was as much bound to keep a journal of 
their prHceedings umler that instrument, as each 
H>>use is now bound to do under the existing con- 
stiiu'ioni' How coidd they make the required 
monthly publication oftheirjouriial,u!deS9 a journal 
were kept by themi* The requisition, therefore, in 
the present constitution to keep a journal, is but 
an expressio ), for the sake of greater fullness, of 
whitt would otherwise have been impl ed, and 
serves only as a more formal introduction to the 
practical end and substance of the constitutional 
provision on the si;bject, and that with which it 
emphatically concludes, to wit: the publicadnn 
from time to time of the journ..!. That publ ica- 
tioii once made, and the people put in pos'^ession 
of the authentic evidence of the proceedings ol 
their agents, the purposes of the cons'itution are 
fulHlled, and the jireservation of the original 
nianucr'pt journal become thenceforward an offi- 
cial form.iliiy.* 

Even if the true and only meaning of the 
requisiiiim to fe:eju a journal were that which has 

*It is a remarkable fact, that there i-; no original 
mmuscript journal oft he House of Representa'ives 
ii\ existence from the da'e of the adoption of the 
constitution to the lirst session of the I8tli Congress, 
1823, '24. As soon as the jouruLd was printed 
anfl published, it ws supposed there was no longer 
any practical motive for retaining the original man- 
user. pt journal, which wa«, therefoie, never taken 
care of, or preserved. Such was the practice du- 
ring the whole pe-iod of tlie clerksliip ol'tl^eccle 
brat'd John Beckley, thin whom there never was 
a more accomplished clerk, and but few abler 
men; and i;' there hn i)ropriety in the maxim, 
cuilibet in sua nrtt creilendum es/, such a practical 
cottstruction of the constitution, in this regard, by 
a man so conversant with his business, must be 
admitted to be entitled to no slight consideration. 



been so much Insisted on, that is, to preserve, do 
not gentleman perceive that the preservation of 
the jourii:d is fully and most siirely accomplished 
in its publication'' The thousand and teti copies 
which the Secretary has twld us are regularly 
printed and distributed by order of the Senate to 
the members of C<ingress, to the various public 
functionaries, to tlie 5>tai(j Governments, to public 
in.stitutions and societies throughout the Union, 
fm-nish a far better security for the preser^'alior* 
of the journal thMU tlie most scrupnlous care and 
vestal guardianship of the original manuscript^ 
which, ia s[)ite of every j^reraution, might yet be 
lost or destroyed by inevitable accident. These 
iHidtiplied printed copies, while plicing tlie pre- 
servfitiou of the journal beyond the reacU of coiv- 
tingency, are, at the s.«me time, for every practical 
public use, whether of legal evidence or politic:il 
accountability, on a footing of equal validity witU 
the manuscript original. 

The numerou'-i parliamentary prcced-nts in 
England, as to the power '>f legislative bodies 
over their journals', are not denied; but it is coi»- 
tended that those precedents sUould have no 
weigiit heie, beciuse the constitution of the 
United States expressly reejuires that each House 
of Congress sha 1 keep a journal; while, in Eug^- 
l.-ind, it is said, no sucli recjuisition exists in regard 
to eilhur House of Parliainent. The requisition 
m the constitution of the United States, I h.'ive 
already shown, is but declaratory of the natural 
and jire-existing law of ait legisliitive bodie^Jof 
whose organizati III and functions it is a necessary 
and invariable incident to keep a journal of their 
jn'oceedtngs; and in this view I am borne out not 
only by the example of th'-- articles of confed' ra- 
tio;), but by that of several of the State constitu- 
tions, which, presupposing the keeping of a jour- 
nal as a matter of course, provide only, aftt-r 
the m-itnier of the articles of coiifederalion, for 
the periodical puhlicatiun of it frcnn tirne to time. 
But, without dwelling firtber on thi.-J view of the 
inattrr, it is alc< gether a mistake to say that there 
is no positive requisition th it either House of Par- 
liament in England shall keep a journal of their 
proceedings. 1 find the cla'^sic hisioiian of tliat 
country stating that, in 1607, when the na:<cent 
pretensions of the Stuarls, and the spirit of the 
age, fust made the House of Commons sensible 
both of its importance and responsibility as a 
guardian of the pubhc libeny, that body entered 
a formal order for " the regular kcepini; of their 
jiiurnals." Subi-'quently, iu 1621, as I learn from 
another authority not less authentic, (Hatsell,) 
an entry was made in the journnl of the House of 
Commons, Oil the motion of Sir Edward Sackville, 
ill the^e words: " Tnat all our proceedings may be 
entered here, and kept as records. " Now, sir, it ia 
very remarkable that these two orders of the House 
of Commons contain the identical language of the 
constitution of the United States, to wit: that a 
journal shall be kept of their procted-naa. In 
each of them, the magic word to keep, which seems 
to have exerted so potent a spell on the imagina- 
tions of gentlemen, is found; and yet we know 
it has never been held to be a violation ot, or in- 
con.sistent,witb this order to Ae^jo a journal of their 
proceedings for the House of Commons, in certain 



cases, t!) apply an efTtctual correc;ive to wrorg-- 
fiil or inipriivideut entries previouslv made in it. 
It ma> be said, however, that thi'i Order, being- 
made by the body itst-lf, is lot obl'palory on its 
own action. To this,! reply, thnt the rules pre- 
scribeii by parliamentary bodies for their Govern- 
ment, are always binding- upon tliem. till rescinded 
or repealed; and while a nil- or order is retained, 
nothing- inconustent with it can be done.un'ess the 
rule be first suspended by a vote of the body. 
Such is ihe invariable practice, both of this 
and the other House of Congress, hs of Itgisla- 
tive bodies elsewhere. 

But this mutter stands on yet higher ground. 
An act of Parliament, which all vvil! udinit u 
binding- on the respective Houses, and wliich 
neither House can rept-ai or control by its sepiirate 
action, virtually requires a journal to be kept by 
the House of Consmons, in requiring certain en- 
tries to be made in it. I refer to the statute of 6 
Henry VIII, which provides, "that the license 
for members departing- from their service, shall 
lie entered of record in the book of the cleric of 
the Pari ament, appointed, or to be appointed for 
the Commons' House." The book of the clerk 
for the Common.s' House, here referred to, and 
in which certa;n thiiig-s are requiied to be entered 
of record, is of course the journal of the House, 
P.ut how can these entries b - made in the ionrnal, 
unless a journal be kept. This act of Parliament, 
therefore, requires, and viriudly commands the 
keepmx of a journal by the House of t;ommons; 
just as the articles of confederation, already refer- 
red to, in providing- that Cong-ress "slmilpiil-Jivh 



the question in that discussion, had referred to the 
Engiish laws and doctrines, on the subject of the 
light of petition, and that he made use of the par- 
liamentary ])recedents from H:ttsell, to show that, 
in the British parliamentary practice, it was held 
HO violation of the right of petition, to refuse to re- 
ceive a petition. 

Mr. Rives Slid he had not had the pleasure of hear- 
ing the speech oft he gentleman from South Carolina, 
but he inferred from reading" it, that he consi lered 
the parliamentary practice of Great Britain as, at 
least, hii,'h authority in reference to the question 
then under discussion. I am not at all disposed, said 
Mr. Ji., to question the propriiety of the applica- 
tion then made by the Senator from South Caro- 
lina, of precedents from the Eng-lish parliamenary 
practice. I mean only to say, that however appli- 
cable they may have been on that occasion, they 
are, at least, as much so on the present. 

The precedents in the Britisli parliamentary 
practice, (which, it must be admitted, has furnish- 
ed the model, and, to a great extent, the law of 
the procpfdinfijs of our legislative bodies here, and 
in every State of the Union,) are, on the subject 
now under consideration, full, unequivocal, and 
conclusive. Som^i of them have been mentioned on 
this floor, anil are familiar to the minds of gen- 
t'emen. I wid not repeat them; but there are 
two cases, which, I believe, have not attracted the 
notice of gentlemen, and which, from the peculiar 
g-roundson which they stand, illustrate so forcibly 
tha hig-h supervisory and controlling pov/er of 
parliamentary bodi' s over their journals, that I will 
take the liberty of detaining- the Senate a few mo- 



the journal of its proceedings monthly," vu-tually I menis with their recital. fn'l668, Skinner, an En? 



requires Congress to keep a journal; for other 
wise, the lequired publication could not take place. 
The di.stinction, theref )re, which has been re- 
lied upon to justify the rejection of the British 
precedents on this subject, is not founded in a 
just view of the constitutional or parliamentary 
history of that country. The two Houses of Par- 
Jiament are, in fact, bound and required to keep 
a journal of their proceeding.s, as well as the two 



lish merchant, presented a petition to the King, 
complaining-ofvariou-^wrong-i! and outrages he had 
sustained from tiie East India company. The 
matter was considered not cog-nizable by the or- 
dinary tribunals and was referred by the King to 
the HoiiS' of Lords. Strong objections were urged 
to the jurisdiction of the House of Lords; but they, 
nevertheless, took cognizance of the affair,and final- 
ly entered a judgment in favor of Skinner, against 



- y „ ^" t" ">->->. uiiifj.^, na well ab lue iwo IV emereci a jiuigmem. in lavor oi oitinuor, againsi 

Houses of Congre.ss. They are bound to do .so by the Ea.st India company, for £5,000 dam;iges.' 'I his 
the very nature of their institution, by their own proceeding was immediately and earnestly resisted 
rules and orders, and by the virtud command ol by the House of Commons, as contrary to the law 
act of Parliament. If, therefore, a similar.tv, or I of the land, aid an invasion of the riglits of the 



commmuty.f principle could, in any ca^.-, jusii- 
tyarguuiLr from the institutions and usages of the 
one country, to those of the other, it is certuinly 
upon a question Ike the present. I find tlia't 
much use was made on another and recent occa- 
sion in this body, of British parliamenti-u-y prece- 
dents, by gentlemen who seem now inclined to 
disavow and reject them altogether. It I am not 
mistaken, the Senator from South Carolina, (M,- 
Calhoun,) on the qupstion which was so earn si Iv 
RHd ably debated here recently, as to the right oV 
tilher House to refu.se to receive a petition, mtro- 
oiiced liatsell's work, the great repository ol 
liritish p.i-liamentary precedents, and tlrew large- 
ly from It in support of the position he maintained, 
that It would be no violation of the light of peti- 
tioning, as guarantied by the constitution, to re- 
fuse to receive a petition alter presentstitm. 

Mr. CALHOUN here explained, and was under 
stood to s:iy that gentlemen on the other side of 



" » " • --0 • 

people. A viol-nt and protracted controversy en- 
sued between the two Houses; and the Lords be- 
ing compelled, at last, after a struggle of eigliteen 
i-Tionihs, and repeated prorogations of both Houses, 
to yield their claim of juri^-diction, they expunged 
from their journal the judgment they had entered 
in favor of Skinner against the East India com- 
pany, and tin; vvhole of their proceedings connect- 
er! with it; whereupon the Commons, in like man- 
ner, expungedi'rom their journal the vnious reso- 
lutions and proceedings they had adopted. In 
this instance, we see a proceedii g even of a jutii- 
cial character, under which private rights might 
be claimed, rxpum^ed, in virtue of the high discre- 
tion-irv authority of parliamentary bodies over 
their journ.-jls; and in such a case, perhaps, the ex- 
pnnction is admi-isible, mainly on the ground that 
the obnoxious proceeding took place in the exer- 
cise of an 77/f'o-«/jurisdiction, at last admitted to be 
such, and intended to be renounced, as in fact 



was finally abandoned, by the act of expon^M^? the 
judgement, which was its fruit. 

The other case to which I have alluded, oc- 
curred in the proceedings on the recognition 
bill in 1690. A clause was introduced into 
that bill, on the motion of the Whig party of 
that day, and the friends of the revolution, declar- 
ing that the acts of the convention Parliannent, 
though assembled without the formality of a royal 
summons, were good and valid. This was strong- 
ly objected to by the tory lords; a number of 
whom, by the leave of the House, entered their 
protest against it on the journal- 

The Senate well know that it is a distinctive and 
fundamental principle in the constitution of thi 
House of Lords, that any member or numbtr of 
members, dissenting from a measure which has 
passed that body, have the right, with the leave of 
the House, to enter a formal protest against it on 
the journal. In this case, the leave of the House 
was granted. The right of the pi-otesting lords 
became thereby vested and complete; and yet it 
appearing, on a subsequent examination of i\\e,pro- 
<es/, that" the grounds of objection taken in it, as- 
sailed, and were subversive of, the principles of the 
revolution, and settlement of the Government just 
accomphshed, the House ordered it to be expun/s;- 
ed from their journal; which order was carried in- 
to execution, and gave rise to another protest lor 
expunging the former protest. 

But the precedents of parliamentary expunging 
are by no means confined tu the land of our ances- 
tors, from which we derive the model of our par- 
liamentary institutions and proceedings. Similir 
instances have occurred in our own country, both 
before and since our revolution, subsequent, as 
well as previous, to the adoption of our present 
federal constitution, both in the State and in the 
national Legislatures. There is a case in the his- 
tory of my own State, which, as there appears to 
have been singular misconceptions about it, the 
Senate will excuse me for mentioning some- 
what in detail. I refer to the expunging of 
a resolution of Mr. Henry, which took place in 
the House of Hurgesses of Virginia in 1765. Th 
transaction has been referred to as an odious and 
abortive attempt at expunging made by the 
King's party \n the House of Burgesses, which 
was defeated by the energy and talents of Mr. 
Henry. Such, sir, are not the facts, as transmitted 
to us by the most unquestionable cotemporary tes- 
timony. The attempt to expunge was not defeat- 
ed. The proposition, on the contrary, was car- 
ried. It was carried, not by an odious King's 
party, but with the concurrence, as we are autho- 
rized to believe from the only account extant of 
the transaction, of men who were, and who prov- 
ed themselves to be among the brightest cham. 



rights of the colonists. The four first of these 
resolutions merely re-affirmed what had been 
earnestly asserted, only six months before, by 
the House of Burgesses in three several docu- 
umentsof the most solemn character; an adJress 
to the King, a memorial to the House of Lords, 
and a remonstrance to the Commons. The fifth 
resolution, however, went somewhat further, and 
seemed to tender at once an issue of force with the 
mother country. These resolutions were opposed 
by Messrs. Ka'ndolph, Bland, Pendleton, Wythe, 
and other gentlemen, as devoted andfirm friends of 
the rights'of America as any of the great states- 
men and patriots of that day, but who deemed 
Mr. Henry's resolutions inexpedient at that mo- 
ment, inasmuch as the sentiments and princi- 
ples they contained had already and very 
recently 'been expressed in other proceedings, to 
which the expected answers from the govern- 
ment in England were not yet received. The 
fifth resolution was deemed especially inexpedi- 
ent in the then feeble and defenceless condition 
of the colony, as it might provoke a conflict of 
force, for which time and forecast were necessary 
to prepare. The resolutions, however, under a 
powerful display ^f Mr. Henry's eloquence, were 
passed by one or two votes only ; but on the fol- 
lowing day, on a motion made for that purpose, 
and carried, the fifth resolution was expunged 
from the .Journal. These are the facts as vouch- 
ed by the testimony of Mr. Jefferson, and the 
elder Judge Carrington, (both witnesses of the 
transaction,) and as recorded by tlie tloquent bi- 
ographer of Mr. Henry himself. There was 
then, no odious and abortive atte,mpt to expunge, 
made by a King's party, in the House of Bur- 
gesses. The attempt was not d featcd, as has 
been said ; on the contrary, the proposition to ex- 
punge was carried — and carried, as we are autho- 
rized to believe, by the only authentic account 
which has reached us of the transacti^in, by the 
influence and with the concurrence of high-souled 
American patriots; of Peyton Randolph, presi- 
dent of the first Congress; Hichsrd Bhnd, one of 
the chosen delegates of Virginia, to that glorious 
assembly; Edmund Pe.idlcton, another delegate; 
and George Wythe, whose name stands proudly 
at the head of the Virginia signatures to the De- 
claration of Independence. The two last named 
gentlemen, Mr. Pendleton and Mr. Wythe, af- 
terwards and for a long period, respectively pre- 
sided in and adorned the highest courts of law 
and equity in the State; and it will be no dispar- 
agement, I humbly conceive, to the pretensions of 
the highest here, to say, that they understood as 
well, and felc as religiously, the sanctity of a re- 
cord, as any gentleman on this floor. 

Examples of the like character have occurred 
in the other States. In the Senate of Massa- 



pions of American freedom and independence — i chusetts, as is well known, a few ye .rs after the 



such men as Peyton Randolph, the President of 
the first American Congress; George Wythe, 
Edmund Pendleton, Richard Bland, Richard 
Henry Lee, all of whom, afterwards put their 
hands to the declaration of Anieric^n indepen- 
dence, or bore a conspicuous part in the delinera- 
tions which led to and establishtd it. The cir- 
umstances were these: Mr. Henry moved a series 
f resolutions, five in number, declaratory of the 



close of the late war with Great Britain, a reso- 
lution was triumphantly carried for expunging 
from its Journal, the anti-American sentiment 
which the baleful spirit of party had recorded 
there, in the very mid.st of the conflict, that it 
was unbecoming a moral and religious people, to 
rejoice in the successes of our arms. At a more 
recent period, some seven or eight years ago, the 
Senate of another highly respectable State, (Ten- 



8 



nessee,) as I learn from undoubted authority, di- 
rected a formal and important entry on its Jour- 
nal to be stricken out,- which was done in the 
very manner proposed by the resolution on your 
table, by drawing a black line around the con- 
demned entry. But without dwelling on these 
instancas, let us descend to cases which come 
more immediately home to ourselves. The case 
which occurred in this body in 1806, and which 
has been already noticed by the Senator from 
Missouri, has been in vain attempted to be parried 
or evaded.* In tliat case, a formal entry made on 
the Journal,' in pursuance of the standing rules 
of the Senate, and in strict conformity to the truth 
©f facts, as they transpired, was ordered to be ex- 
/)u?jgecf, and actually expunged. The entry reci- 
ted the substance of two memorials presented by 
a member of the Senate, containing grave and 
criminal insinuations against the Executive, and 
stated also the proceeding of the Senate, which 
took place on their presentation. This entry, as 
I have already remarked, was in strict pursuance 

*In that case, the following are the facts: On 
the 21st day of April, 1806, being the last day of 
the session, Mr. Adams presented two memorials, 
which are thus noticed on the Journal: 

" Mr. Adams communicated two memorials, one 
from Samuel G. Ogden, and the other from Wm. 
S. Smith, stating that they are under a criminal 
prosecution, for certain proceediu^rs, into which 
they were ted by the circumstance that their pur- 
pose was fully known to, and approved bv the 
Executive Government of the United States;' that. 



of the standing rules of the Senate, the 52d arti- 
cle of which expressly requires that "a brief 
statement of the contents of each petition, memo- 
rial, or paper, presented to the Senate, shall be 
inserted on the Journal;" and, in general, that " a 
true and accurate account of the proceedings of 
the Senate shall be entered on the Journal-" — 
Now, sir, how is the force of this precedent in the 
annals of our own body attempted to be parried? 
Why, sir, by the circumstance that tlie order for 
expunging the obnoxious entry, was adopted on 
the same day (the last of the session) that the en- 
try itself was made, it being contended that the 
Journal is not complete, 1 11 it is read over in the 
Senate, as it usually is, the following morning, 
for the purpose of correcting any mistakes which 
may have been made in it ; and that, till that cere- 
mony lias been gone through, it is ufider the per- 
fect control of the Senate, and full)' open to re- 
vision and correction. This is the argument of 
the honorable Senator from Louisiana, (Mr. Porter.) 
It is obvious to remark upon it, in the first place, 
that it confounds two things entirely distinct in 
their nature, and wholly different in the princi- 
ples on which they rest — the correction of mis- 
takes in a Journal, and the expunging of matter 
therefrom, in which there hais been no mistake, 
but which is otherwise and intrinsically objec- 
tionable. Tlie purpose for which the Journaii> 
ordinarily read over in the morning, after it is 
made up by the Secretary, is simply to correct 
any mistakes which may have been made in the 
entries upon it. This is explicitly declared by the 

- , - , standing rules of the Senate, the very first of which 

on this prosecution, 1 hey have been treated by ! provides that the "President having taken the 
the .Judge of the District Court of the United ! chair, and a quorum being present, the Journal of 



States at New York, Mathias B. Talmadge, Esq, 
m such a manner, that the same grand jury which 
found the bills against them, made a presentment 
against the Judge himself, for his conduct in tak- 



the preceding day shall be read, to tlu end that 
any mistake shall be corrected that shall be made in 
the entries." 

Now, sir, in the precedent of 1806, there was 



»"g the examination and deposition of the said I no mistake in the entry which was ordered to be 
Samuel G. Ogden. And the memorialists, consi- 1 expunged. It recked' truehr, and in compliance 



dermg Congress as the only power competent to 
reheve then), submit their case to the wisdom of 
Congress, and pray such relief as the laws and 
constitution of this country, and the wisdom and 
goodness of Congress, may afford them; and the 
memorials were read, and, 

On motion. 

Ordered, That the memorialists have leave to 
withiU-aw iheir memorials respectively." 



with a positive injunction of the rules of the Sen- 
ate, the subSitance of the memorials presented, 
and the proceeding of the Senate on their presen- 
tation. There was and could be no allegation of 
any error in these respects. The entry was or- 
dered to be expunged, not because of any mis- 
take in it, but because the mailer of it was unj ist 
and wrong; because it v/ent to criminate the Ex- 
ecutive administration of the country, without 



These memorials appear to have been present- j proof or probability; and for that reason, ought 
«u m the morning.. After disposing of them, and | not to stand upon the Journal of a co-ordinate 
a variety of other business, the Senate took a re- 



cess, and met a-ain at 5 o'clock, P. M. The very 
last entry on the Journal of the evening session is 
the following order, adopted on ayes and noes, for 
expunging every thing in the Journal relative to 
the aforesaid memorials: 

" On motion, that every thing in the Journal re- 
ative to the memorials of S. G. Ogden and Wm. 
S. Smith, be expunged therefrom," it pn.ssed in 
the affirmative. Y);as: Messrs. Adair, Condict, 
Gdman, Kitchel, Logan, Mitcliell, Smith of Md. 
8n.ith of N. V. Stone, Thruston, Worthington, 
and Wright— 13. PJats: Messrs. Adams, Bald- 
win, Hillhouse, Pickering, Plumer, Smith of Ohio, 
Tracy, and White 8." 



department. It is in vain, therefore, to endeavor 
to resolve the precedent of 1806, into the orilina- 
ry power of revising and correcting the Journal, 
before it is finally made up. It was a far difter- 
ent thing. It was no process of correcting ww- 
fakes m entries on the Journal, which is ordinarily 
done the morning after the entries are made, aiul 
without the formality of an order or resolution. 
It was the ex'rrcise on the part o*" this bod}', of a 
higher and more important power — a jiower not to 
correct mistake, (for there was none,) but to re- 
dress wrong — to purge its Journal — not of erro- 
neous entries, but of improper matter, in the en- 
try of which there had been no error or mistake; 
a power which, frcm the nature of it, and thfc 



9 



principles on which it is founded, must exist in 
as full force the next year, as the next tuorning 
after the objectionable entry has been made. 

No ingenuity, Mr. President, however great, no 
effort of mind.however gis,'antic, can ever succeed 
in the attempt which is made to reconcile the Sen- 
atorial precedent of 1806, with the doctrines of 
gentlemen who oppose the resolution now under 
consideration. On what, sir, is their whole argu- 
ment built? Is it not the assumption that each 
House of Congress, in being rcqtdred to "keep a 
journal of their proceedings," is bound to preserve 
to all futiu'e time the record of each, and all of their 
proceedings; that every act or proceeding of either 
House should be entered on the journal, and once 
!■)••«/?/ entered there, that entry can never thereafter 
be touched, altered or removed, but must remain 
us it is, without tlie change of a letter or a conima, 
to the •' last syllable of recorded lime." Now, 
sir, can it be contended, that the presentation of 
the memorials of Messrs. Smith und Ogden by a 
member of the Senate, the reading of those me- 
morials, the action taken upon them by the Senate, 
were not proceedings of which the constitution re- 
<-juiros a journal to be kepti* We have already 
seen that the rules of the Senate, adopted for the 
purpose of fultiliing ths injunction of the constitu- 
tion, expressly require all these things to be en- 
tered on the journal. Can it be pretended that 
tnese matters were not /ru/y; i: > ■ ed .' By no 
means! In every possible aspect,: \en, in which 
the proceeding' of this body In 180(3 can be view- 
ed, it utterly prostrates the whole fabric of tecluii- 
ca/ refinement on which the arguments of gentle- 
men against the power to expunge have been 
raised. 

A case of expunging, involving precisely the 
same principle and leading to the same conse- 
([uence, occurred in the House of Representatives 
not many years ago. On the 25th of February, 
1829, Mr. Randolph, of Virginia, being informed 
tliat Mr. Pinckney had just died in this city, 
(where he then was,) rose and announced the 
event to the House, with the impressive eloquence 
which the loss of such a man naturally drew from 
a genius of kindred inspiration, and moved un im- 
nied;;>te adjournment of the House. It afterwards 
appeared that Mr. Pinckney was not dead at the 
time tluit Mr. Rand dph communicated the 
event to the House, though he died some few 
hours after. The fact, however, of Mr. Ran- 
dolph's having announ'ied the event, and the con- 
sfquent adjournment of the House, were necessa- 
rily entered on the journal as a [)art of its pro- 
ceedings; and the following day, Mr. Randolph, 
alter au explanation of the <:ircumstances, moved 
that the entry on the jcurnul of the preceding day 
should be expunged, which was ordered, and ac- 
cordingly done. Now, sir, if the extreme, and I 
might well call it, superstitious strictness which is 
now inculcated in regard to the sanctity and invio- 
lability of entries or.ce made on om- journ.ils h id 
prevailed then, this expunctlon, however'simple 
a^d proper in itself, could not have been made. 
It will be remarked that there was no mistake in 
tiie entry made on the journal. The entry w:is 
not of Ml . Pinckney's death, but of t!ie fact that 
Mr. Randolph on a given day announcsi to the 



Hfuse that Mr. P. was dead, and then moved an 
adjournment. That fact was truly entered,^ pre- 
cisely as it occurred. If there had been a mistake 
in the entry, the motion would have been t'le ordi- 
nary one, to correct, and not the extraordinary 
one, to expnnge it. If, moreover, the doctrine now 
so earnestly contended for by gentlemen were 
well founded, tliat a transaction or proceeding in 
either House once truly entered on its journal, the 
entry must stand there to all future time, and can- 
not be touched or changed in a letter or a comma, 
without a violation of the constitution, then Mr. 
Kandolph, instead of the short and obvious reme- 
dy of an expunction of the entry of the prece- 
ding day, could have constitutionally attained his 
object only by a distinct entry of his explanation 
on the journal of the succeeding day. 

But, sir, the Senwtor from Louisiana, even con- 
ceding the power of each House over entries pre- 
viously made on its journal, contends that this 
power is limited to the current Congress, and that 
the Senate or House of Representatives of a suc- 
ceeding Congress has no control whatever over 
the journal of the Senate or House of Represent-, 
ativtrs of a preceding Congress. Without stop- 
ping to show that this argument, even if correct 
in its principle, would be wholly inapplicable to 
the Senate, whicii, from the successive partial re- 
newals of its members (one third of the whole be- 
ing replaced by new elections every second year,) 
is a perpetual body, I choose rather to meet the 
principle of the objection at once by demonstra- 
ting itsutter incompatibility with the nature of the 
legislative trust. It is a fundamental principle in 
regard to legislative bodies that, in theirordaiued 
succession by virtue of periodical ehctions, one 
Legislature has precisely as much and the sanie 
power as another; a law enacted by one Legis- 
lature, or in one session of a Legislature, may be 
repealed by another or during a subsequent session. 
What one resolves, another may rescind ; and in 
like manner and on the same principle, one Legis- 
lature has as much and the same power over the 
Legislative records as another. In this respect, 
there is an obvious and important distinction be- 
tween Legislative and Judicial bodies ; a supposed 
analogy in whose functions and proceedings has, 
doubtless, misled the hsnorable Senator. After 
the adjournment or close of the term of a court, its 
proceedings, its orders, its judgments, its decrees, 
are final and irrevocable, so far as depends on its 
own action. It has no power, as legislative bodies 
have, at a subsequent term or session, to revoke, 
change or set aside any thuig done by it at a pre- 
ceding term or session. Iferror has been committed, 
that error can be corrected after the expiration of the 
term only by a higher tribunal, and certain limita- 
tions of time are prescribed within which even these 
appeals to higher tribunals must be prosecuted. So 
imperative is the muxm^'inlcrest reipublicse ut sit fi- 
nis Idium," the pubic repose requires a limit to be 
fixed to judicial controversies. The nature of the 
legislative tru'^t, however, being altogether differ- 
ent, and ri-quiring that the exercise and expression 
of the public will should be, •.\t all times, unfettered 
in matters of general concern, every Legislature, 
or session of a Legislature, has an unlimited con- 
trol over the acts, proceedings, or resolutions of a 
preceding Legislature or session. 



10 



Gentlemen have been misled, as it seems to me, 
through the whole course of tiiis discussion, by a 
suppos'd analog-y between legislative and judicial 
proceedings, when, in fact, none exists. Either 
from the force of professional habits, or from a 
hasly consideration of the subject, we have heard 
legislative journals and judicial records constantly 
confounded, when no two things can be more dis- 
tinct. The security of private rights, titles to 
property, real and personal, repose on the judicial 
records of the country; and hence those records 
are everywhere guarded by proper penal enact- 
ments, against unauthorized interference, or any 
alteration whatever. But in regard to legislative 
journals, while they are necessarily confided to 
the sound discretion of the respective bodies wkose 
duty it is to keep them, private rights and the se- 
curity of property can never depend upon them. 
Impotant rights and interests may sometimes be 
claimed or acquired, I know, under legislative 
actsj but those acts, if laws, are never spread upon 
the journal; or if joint resolutions, they are enrolled 
and preserved, like the laws, out of, and indepen- 
dently of, the journal; and both are included in 
annual and authorized publications of the acts of 
Congre^.s, which are received in evidence in all 
the courts, without further proof of authenticity. 
Disrnlsslng for the present, Mr. President, the 
authority of precedents, there are cases in which, 
upon the mire reason oC the thing, I think all 
would agree that the right of this body to expunge 
an entry from its journal would be unquestionable. 
The constitution requires each House to keep a 
journal of its ''proceedings,-" tint is, I presume, 
its proceedings as a constVtuti-jnal body, acting in 
discharge of its appropriate constitutional func- 
tions. On this point, I beg leave to read a passage 
from Mr. Jefferson's Manual, the authority whicli 
especially governs our proceedings in this body; 
a passage which seems to me to have an important 
bearing on the question we have been considering. 
He says, "Where the constitution authorizes 
each House to det<yrmine the'ruies Qr\{sproceedinirs, 
it must mean in those cases, legislative, executive, 
or judiciary, submitted to them by the constitu- 
tion, or in something relating to these, and neces- 
sary towards their execution. But orders and res- 
olutions are sometimes entered in the journals hav- 
ing no relation to these, such as acceptances of 
invitations to attend orations, to take part in pro 
cessions, &c. These must be understood to be 
mere ly conventional d^mon^ those: who are willing 
to participate in the ceremony, and are, therefore, 
perhaps improperly placed among the records of the 
House.^' 

The result of this, as it seems to me, very clear 
and just distinction is, that nothing is to be re- 
garded as properly a proceeding of either House, 
of wiiich -K'-rsi,, nal U required to be kept, but such 
acts as are done in discharge of the legislative, ex- 
ecutive, or judicial functions respectively com- 
mitted to them by the constitution. If any act be 
done by either House, not appertaining to'the dis- 
charge of its constitutional functions, that act 
ought to be considered as extra-official, or, as Mr. 
JefT'c-rfon expresses it, as merely conventional 
among the members participating in it; conse 
quently, not as a proceding of the body to be 



entered on the journal, and if improperly placed 
there, may be, and ought to be, taken off. With 
this distinction as my guide, let me suppose a case. 
Let us suppose that this body, imitating the irre- 
gular practice which has obtained in some of the 
State Legislatures, should, while still organized as 
a Senate, proceed to the nomination of a President 
of the United States: let us suppose that the verj- 
resolution which is now proposed to be expunged 
had been used, as it well might, an a preamble to 
such a nomination: let us suppose that the Presi- 
dent had been in his first term, and then the pre- 
mble and nomination woulo have run thus — 
" Whereas Andrew Jackson, ' the President of the 
United Statas, has, in the late Executive proceed- 
ings in relation to the public revenue, assumed 
upon himself authority and power not conferred by 
the constitution and laws, but in derogation of 
both,' and has thereby proved himself unworthy of 
the confidence of a free people: Resolved, there- 
fore, as the opinion of the Senate, that 

be, and is hereby, recommended to the good peo- 
ple of the United States, as the most fit and proper 
person to replace the said Andrew Jackson in the 
office of President," &c. 

Suppose, Mr. President, that such a resolution 
had been adopted by the Senate, organized as it is 
at this moment, yourself in the chair, all the Se- 
nators in their seats, the Secretary at his tabh', the 
yeas and naj's called upon it, and the resolution 
finally entered on the journal; could such a re- 
solution, notwithstanding all the Senatorial forms 
which might have accompanied it, bi2 considered 
as a proceeding of the Senate within the meaning 
of the constitution' Can any one doubt that 
there would be full authorit)'- in this body, when it 
should see the error and evil tendency of its act, 
to expunge such a resolution from its journal? If 
so, the question of powe?' is settled; and the pro- 
priety only of its exercise would then depend up- 
on a question, which I will not anticipate the dis- 
cussion of, but which it may be well to suggest for 
the consideration of gentlemen, whether the reso- 
lution actually adopted on the occasion referred 
to, had more relation to the functions, legislative, 
executive, or judiciary, entrusted by the consti- 
tution to this body, than the resolution supposed, 
would have had. 

While, therefore, Mr. President, I cannot doubt 
that there are cases in which an entry improper- 
ly placed upon our journals may be removed or 
expunged therefrom by actual erasure or oblite- 
ration, it must yet be borne in mind that no such 
obliteration or erasure is contemplated or requir- 
ed by the resolution now under consideration, it 
contemplates a wjora/, not a pZ/j/stco/ expunction ; 
an expunction of the act, without expunging the 
record. It seeks to deprive that act of all legal 
force and validity by ajiplying to it the appropri- 
ate and significant language of parliamentary con- 
demnation ; and without erasing or obliterating 
the original entry of it on the journal, to affix to 
that entry a visible mark, which shall show, in all 
time, that the act there recorded had been revo- 
ked, annulled, and repudiated by the solemn 
judgment of the Senate and the nation ; so that if 
in any future search for precedent, the act be 
found, its condemnation be found inseparably as- 



sociated with it. Tliat this is the meaniuR' and in- 
tention of the resolution, is thown by its own ex- 
press declaration. But it is objected that, in that 
sense, the lerm expunged cannot be properly used. 
The question, tiien, becomes one of mere verbal cri- 
ticism ; and surely g' ntiemen will admit that it is 
the privilege of public bodies, as well as private 
Individuals, to dffinp the sense in which they use 
terms susceptible of a difference of signification. 
This is explicitly don(? by the resolution under con- 
sideration, and all objections founded on the as 
sumption of a meaning, different from that in 
which the resolution interprets and defines its own 
language, must, of necessity, fall to the ground. 
But I willingly meet gentlemen on the question 
they have made, and maintain that the use of the 
word exptwgfi, in the sense in which it is employed 
on the present occasion, is perftctly correct and 
consistent ii\ itself, and justified by numerous par- 
allel examples in the nsHge of language, both in 
juridical and parliamentary proceedings. I will 
call the ;ittention of my learned coHleague espe- 
cially,(Mr. I.eigh,)to a striking illustration furnish- 
ed by tlie decisions of the highest courts in our own 
State, with which he is far more familiar than I can 
pretend to be. We all know, Mr. President, that in 
law, a deed is an instrument signed, sea/fc? and deli- 
vered — that it isaM essential and indispensable ele- 
ment in its legal character that it should be aealed, 
and that a seal, in the common understanding of 
the word, and as d-rfined, I believe, hy Lord 
Coke himself, is »n impression inade on wax or 
wafer; and yet the Court of Appeals in Virginia, as 
have more recently,! believe,the courts in a majori- 
ty of the other Stales, decided on principles of com- 
mon sens." :ind common kw, independently of any 
statutory provision on the subject, that a scroll or 
Ijlack lines drawn in any shape to suit the fancy of 
the drawer, when declared to he inlinded for a seal, 
does, in fact, constitute a seal, and makes the pa- 
per to which it is attached, to all intents and pur- 
poses, a sfa/ti? instrument. Now, .sir, \? black lines 
can thus be made to constitute a, ?fif;/, athiiip; which, 
in its ffrdinaiy sense, is formed of wholly different 
materials, surely they may be made to stand for 
expungiiijj;, which, in its strictest and most literal 
sense, demands only the u^e of the same materials. 
In either case the declared intention stands in place 
of, anil is equivalent to, the thing itse'f 

Again, sir, the term cancel, if not of precisely 
the same, is certainly of very analogous impor*^, to 
the woid expuni(fi. Its etymological meaning, as 
well as that which is given to it in the legal drfini- 
tion, is to destrfjy a deed or other writing by 
drawing lines acro'.s it in the form of lattice ivork. 
It is a principal branch of the conimon law juris- 
diction of tile Court of Chancery in England to can- 
cel letters yiaUi-ni, (which are records) obtained 
from the Kitig upon false suggestions,or otherwise 
void. In both legal and popular phraseology we 
speak of a deed or will (-dso matters of record) 
being cancelled hy the decree of a court. Now, 
sir, in these cases, I presume the Lord Chan- 
cellor does not actually draw lines in the 
form of lattice work on the letters patent 
which he cancels; nor does the court run the 
pen across the will or deed, which is cancelled 
and set aside by its decision. On the contrary, 



it is the decision of the chancellor or the decree 
of the court pronouncing the patent, will, or deed, 
to be fraudulent and void, which, per ic, cancels 
it; that is, des'roys its legal validity and efftct, 
while leaving the record of its material existence 
unimpaired. In like manner, the word expunge, 
in the present instance, exerts its whole force on 
the legd actor precedent itself, without impairing 
the written entry of it upon our journal. 

'the illustrations furnished by familiar parliamen- 
tary proceedings, are not less forcinlt-, while they 
have the advantage of coming still nearer home to 
us. When amotion is made and carried toslrike out 
a clause or section in a bill, it is not, as I under- 
stand, actually stricken out or erased with the pen, 
but the portion voted to be stricken out is indi- 
cated by suitable marks, with a corresponding no- 
tation on the margin of the bill, or on a separate 
paper, and is considered as stricken out by the 
mere force of tlie vote. What is directed to be 
done, is, by a ])ar!iamentary fiction, if you choose, 
considered as actually done. It is a singular co- 
incidence that, in the earlier period of our parlia- 
mentary history, this very word expunge, which 
has of late furnished such a fruitful theme of com- 
mentary, was habitually used instead of the phrase 
to .strike out, in reference to amendments, and in 
the sense in which the latter phrase has just been 
explained. During the two fir.st Congresses un- 
der the present constitution, I find that in the 
journal of this body especially, the word expxmge 
IS of constant recurrence; and that in proposing 
amendments to bills, the motion was to expunge, 
instead of strike out,- and when carried, the clause 
or section which was the subject of the motion, 
was said to be expunged, tlieugh, as in the case of 
striking out, there was no actual erasure, which it 
is now contended the word necessarily imports. 
From its frequent recurrence in the same applica- 
tion, in Yates's report of the proceedings of the 
convention M'hich formed the constitution, we are 
authorized to infer, that its use in the same sense 
was also familiar among the learned statesmen 
who composed that illustrious assembly. 

Hut there is an example of its use which I cannot 
forbear to mention. 

In the draft of the declaration of independence, 
this significant word is used in the very sense 
which is assigned to it on the present occasion. 
After stating the fundamental principle of the 
right (f the people to alter or abolish their 
institutions, a right, which prudence requires 
.should not be exercised for light and transient 
causes, and accordingly, that all expanence hath 
shown mankind more disposed to suffer, while 
evils are sufferable, than to abolish the forms 
to which they are accustomed, the following 
pregnant sentence occurs: 

''Such has been the patient endurance of these 
colonies, and such is now the necessity which con- 
strains them to expunge their former systems of 
government." Now, sir, as Mr. .TefTerson was 
what Lord Clarendon, I think, called .John Hamp- 
den, a root and branch man, he might be con- 
sidered, perhaps, both in temperament and princi- 
ple, as an expunger. It may not, therefore, be 
improper to add that this word stood in the decla- 
ratian of independence, not only as it canae from 



the pen of Mr. Jefferson, but as it was reported I In the case of the protest of tlie tory lords in 
to Congress, and sanctioned by the rest of the 1690, to which I have also had occasion to 
committee, by John Adams, Benjamin Franklin, refer, the principle involved antl finally vindi- 
RobertLivingston, and Rog-er Sherman. What, sir, cated by this odious process of expwigi.nq, was 
did these great men and illustrious patriots mean even of a deeper and more vital character. The 
by expunging eur " former systems of goTern- Senate will recollrct that the clause in the recog- 



ment'" Did they mean that the roi/al charters, in 
whicii those systems of government existed and 
were delineated, were to be erased and obliterated 
with the pen, as modern commentators would have 
us believe the word expunge can only mean? No, 
sir, they meant as we meaji on the present occa- 
sion, that the institution, the oct should be ex- 
punged, leaving tiie record of it unimpaired. 

Having thus, sir, I hope, satisfactorily establish- 
ed the true parliamentary sense of expunging, per- 
mit me to say something of the thing itself. At- 
tempts have been made here and elsewhere to re- 
present it as something very odious and iniquitous. 
Now sir, I take upon myself to say that, from the 
nature of the thing-, implying necessarily a delibe- 
rate change in the public councils, it never can be 
resorted to in a representative government, but 
with the sanction, and under the authority of the 
people, and in their hands will never be used but 
for the vindication of their rights and of the princi- 
ples of their fundamental law. In the history of 
our British ancestors, sir, it comes down to us, 
through a long line of glorious traditions. In that 
country.it has been the instrument by wliich every 
great principle of civil and political liberty has 
been successfully vindicated and established. How 
was expunging used, sir, in the celebrated case of 
John Hampden and ship-money, in 1640? We 
all know, sir, that in that case, the King claimed 
an arbitrary power to levy upon the people, at 
his own discretion, whatever imposition he might 
deem necessary for the support of the Govern- 
ment, and the defence of the kingdom. This 
enormous usurpation was sanctioned by the 
Judges, not merely in an extra judicial opinion 
irreguLrly obtained from them, but in their solemn 
judgment rendered in the Exchequer Chamber 
against John Hampden, for his refusal to pay the 
odious tribute exacted of him. These iniquitous 
proceedings were afterwards exnnnged in the high 
court of Parliament; and by that expunction, the 
great principle of free governmi-nt, that the peo- 
ple can be taxed onl-y with their consent given 
through their representatives, that principle which 
gave birtli to our own glorious revolution, was, 
for the first time, successfully and irrevocably 
established. In the case of Skinner and the East 
India company, in 1669, to wliich 1 have hereto- 
fore referred, what was the great principle involv- 
ed? In addition to that ultimate appellate juris- 
diction in questions of law, of which the House of 
Lords in England has been long possessed, itclaimed 
on that occasion, cognizance of original suits 
in utter subversion of the trial by jury. By being 
forced at last, by the noble re-^istance of the 
House of Commons, io expunge thejudijment they 
had pronounced and their other proceeding in that 
memorable case, they renounced, finally, this 
dangerous claim of original jurisdiction, and the 
glorious institution of our Anglo Saxon ancestors, 
the great bulwark of British and American free- 
dom, the trial by jury, was tiius triumphantly 
rescued and maintained. 



nition bill, to which the tory lords objected, and 
against which thev entered their protest, was owe 
asserting the validity of the acts of the conven- 
tion Parliament — that Parliament, under whose 
auspices the glorious revolution of 1638 had just 
been achieved. The tory lords were unwilling to 
recognize the validity of its acts, because it was 
called together, in tiie emergency of a great cri- 
sis, by the voice ((f the nation itself, speakiny; 
in the person of the Prince of Orange, and withou t 
the formality of the King's writ, which t'nese lords 
held wa5 indispensable, und^^r all circumstan- 
ces, to constitut-e a lawful Parliament. This ob- 
jection, formally recorded in their protest, struck 
at the vital principle of the revolution wii'ch i»ad 
just been accomplished — the sovereign riglu of 
the people to alter or abolish their institutions 
without a sl-ivish submission to pre-existing forms. 
The House, therefore, ordered their protest, which 
had been reguh«rly entered on the journal, to be 
expunged, and in doing so, worthily vindicated the 
vital principle of the right of the people to 
change, modify, or abolish their institutions, 
whenever it shall seem to them good, a principle 
which stands in the very front of the declaration 
of American independence, and is even more es- 
sential to American than British libert}. 

The case of the Middlesex election, which gave 
rise to another instance of expunging in 1782, is 
perfectly familiar to the minds of the Senate. 
There the great right of the people freely to 
choose their own representatives, was vindicated 
and established by expunging a resolution of the 
House of Commons, adopted fourteen years ago, 
and which was justly described as " subversive of 
the rights of the whole body of electors in the 
kingdom." We have seen, then, this denounced 
and calunmiated process of expunging, thro'itrh 
two centuries of British freiidom, used as the effi- 
cacious instrument by which every great consti- 
tutional right, every cardinal principle of popular 
liberty dear to the hearts of fre<*men, hts becu 
successfully vindicited and redeemed — in 164-9, 
the right of the people to be taxed oidy willi 
their o^'n consent — in 1769, the right to jury trial 
in 1690, that right, which is the mother of all 
others, the right of the people to organir.e, mo- 
dify, or abolish thtir political institutions at their 
own pleasure — in 1632, that nght, which forms 
the practical security for the res% the right of the 
neople freely to choose their own r?presentativfs. 
In view of these facts, it is no exaggeration to say 
that every cardinal principle of British and Ame- 
rican freedom has, at one period or anothcf, been 
vindicated and estabhshed by this remedial but 
calumniated process of expunging. 

I 'h;ive already remarked, Mr. President, thitt 
this remedy fo ■ the abuse of delegated power can 
never be resorted to, in a representative go\ern" 
ment, but with the deliberate sanction, and under 
tht> formal authority, of the people. Expunging 
is, in fact, the embodied and potential voice of the 
people, bursting, by its legitimate power, the 



13 



noors of Irglslative assemblies, and correcting', in 
the in«st solemn form, the deviutions and assump- 
tions of their servants. It necessarily implies a 
change in the public connc'ls by the operation oF 
tiie public wilt; i'ur the bodr, wliich h:is commit- 
ted an error or been ginlty <>f a'' usurpation, re- 
maining- constituted na i: w^s, will not be the wil- 
ling" instrument of correcting or expun(;ing its 
own wrong;. Accordingly, in every one of the 
cases Avhich I have mentioned, the final parlia- 
mentary action has beCH preceded by the ma- 
tured, the settled, the irreversible judgment of the 
public raind. In ^he case of Hampden and the 
Hhip-mnney, the prnceechngs which were expuriir. 
rii, to»k ])iice in 1637; the expunctlon followed, 
three years after, in 1540. \n the meantime, the 
public mind had been anxiously and intensely ex- 
ercised on the f-ubject; the question hid been 
liublicly an\d solemnly argued beforeall the. Judges 
in the Exchequer chamber, from time io time, 
tlirough a period of six months. After tlielr de- 
cision was pronounced, the merits of" that decision 
continued to furnish the theme of able and earnest 
discussion, at the liar of public opinion; and final- 
ly, the settled jud^mt-nt f^f the nation was car- 
ried into exec.utinn, by the order of the high court 
of Par isment, for expunging \.he rolls of the ob- 
noxious proceedings. In the case of Skinner 
and the East India Company, in like manner, the 
question between the two Houses was pendiner, 
and earnestly debated before the nation, for 
eighteen months; and the House of Commons 
was but the organ of the settled public ojiin'.on of 
the country, in finally wresting from the lords, 
the expunclion of their dangerous and illegal pro- 
ceedings, (n the case of the protest of the tory 
lords, in 1690, the great principles involved, bad 
been kept constantly before the public mind, by 
the prf)found interest awakened by the revolution 
of 1688, and the faithful and p«triotic wh'gs of 
that day but acted out a deliberate and foregone 
conclusion in the public judgment, by fTpun^xing 
a protest which assailed the vital principle of pop- 
idar sovereignty. In the case of the Middlesex 
election, the question had been pending- before 
the nation for fourte-^n long years; during which 
time it had been the subject of puijlic discussion 



in every possible form — popular, parliatnentary 
and legal; in meetings of the people, in betU 
Houses of Parliament, and incidentally before the 
judicial tribimals of the country. Public opinion 
was never more maturely formed, more fully ex- 
pressed, p>r more faithfully represented, than in 
the order for exinmirins; the unconstitutional and 
obnoxious resolution in that case. 

So it is, sir, on the present occasion. It is this 
day precisely two years since the resolution now 
proposed to he expunged was adopted by tiiis 
body. During the whole of tliat period, the pub- 
lic attention has been constantly recalled to it by 
able and eloquent debates hen- — by the searching 
discussions of the press — by tlie cslm and self-di- 
rected inquiries of the public inind. The subject 
has been constantly under the consideration of the 
people, in one form or another. Every temporary 
and artificial excitement has passed by, and the 
public judgment has been left to its own self- 
balanced wisdom to pronounce on the is5ue joined 
before it. Its decision, I believe sir, has bten 
made up, and, in creat part, pronounced. Eleven 
of the sovereign States of this Union have spoken, 
and spoken authoritatively, demanding the expunc- 
tion of this resolution frora o'.:r journ ds. There 
can be but little hazard in saying, that four or five 
more desire and would approve it, iliough they 
have not yet spoken in an authoritative form, 
probably because they have supposed it to be un- 
necessary to do so. The judgment of our constitu- 
ents, then, of the people and of the States, has 
passed on this transaction — I believe, irrevocably 
passed upon it. They consider the resolution 
adopted by this body on the 28th March, 1834, as 
irregul-ar, as illegal, as unjust, a* unconstitutional; 
and the more alarm mg, as proceeding from that 
branch of the Federal Legislature which is the 
most irresponsible, and as tending dangerously to 
increase its power, already sufficiently great. On 
these grounds, they demand that that resolution 
be expunged from our journal; and seeing not the 
slightest constitutional impediment to the remedial 
process for which they have indicated their prefe- 
rence, I for one, Mr. President, will cheerfully 
obev tlieir voice. 










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